Citation Nr: 9819326
Decision Date: 06/24/98 Archive Date: 07/06/98
DOCKET NO. 97-21 662 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Roanoke, Virginia
THE ISSUE
Whether new and material evidence has been presented
sufficient to reopen a claim for service connection for
bilateral hearing loss.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
C. Wasser Chambers, Associate Counsel
INTRODUCTION
The veteran served on active duty from April 1943 to April
1946.
This case comes to the Board of Veterans’ Appeals (Board)
from an August 1996 RO decision which determined that new and
material evidence had not been presented sufficient to reopen
a claim for service connection for bilateral hearing loss. A
hearing before a member of the Board was requested and
scheduled, but the veteran withdrew his request by a
statement dated in November 1997.
The Board notes there are other issues which are not on
appeal at this time. In a March 1997 statement, the veteran
appears to be raising a claim for service connection for a
psychiatric disorder. Such has not been adjudicated by the
RO. In a June 1997 rating decision, the RO denied an
increase in a noncompensable evaluation for residuals of
perforation of the left tympanic membrane. A statement
received from the veteran in July 1997 may be a notice of
disagreement with the denial of an increased rating for the
left tympanic membrane condition, but such issue has not been
developed for appellate review by issuance of a statement of
the case and submission of a substantive appeal. These
matters are referred to the RO for clarification and any
other indicated action.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he has presented new and material
evidence sufficient to reopen a claim for service connection
for bilateral hearing loss, and that he has bilateral hearing
loss which is attributable to his military service.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that
new and material evidence has not been presented sufficient
to reopen the claim of service connection for bilateral
hearing loss.
FINDINGS OF FACT
1. In May 1985, the Board denied service connection for
bilateral hearing loss.
2. Evidence received since the May 1985 Board decision is
cumulative and redundant of evidence previously considered,
or, when viewed in the context of all the evidence, does not
raise a reasonable possibility of changing the outcome of the
prior decision which denied service connection for bilateral
hearing loss.
CONCLUSION OF LAW
New and material evidence has not been submitted sufficient
to reopen a claim for service connection for bilateral
hearing loss; and the May 1985 Board decision is final. 38
U.S.C.A. §§ 5108, 7104 (West 1991 & Supp. 1998); 38 C.F.R. §
3.156 (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Factual Background
The veteran served on active duty in the Army from April 1943
to April 1946. Service personnel records indicate that the
veteran's primary military occupational specialty (MOS) was
that of a truck driver. He was assigned to the 558th
Antiaircraft Artillery Automatic Weapons Battalion. A review
of his service medical records shows that on medical
examination performed for enlistment purposes in April 1943,
his hearing was listed as normal. An October 1944 treatment
record shows that he was treated for left otitis externa; the
examiner noted no hearing loss or earache. On medical
examination performed for separation purposes in April 1946,
the examiner noted a healed perforation of the left tympanic
membrane, and the veteran’s hearing was normal on whispered
voice test. The service medical records are negative for
complaints or treatment of hearing loss.
In November 1970, the veteran submitted an original claim for
service connection for bilateral hearing loss due to an in-
service ear infection.
At a February 1971 VA compensation examination, the veteran
reported a history of bilateral otitis media during service,
with hearing loss for the past ten years which was noted on
annual examinations performed by his employer. On
examination, the auricles and canals were nonpathologic,
there was light fibrosis of the right tympanic membrane, and
there was intense fibrosis of the left tympanic membrane with
retraction of the anterior portion. There was no mastoid
tenderness and no discharge. The diagnosis was residuals of
bilateral otitis media, suppurative, with defective hearing
of the left ear.
At a March 1971 VA audiometric examination, the veteran's
hearing was tested, revealing pure tone thresholds of 10, 10,
15, and 45 decibels in the right ear and 20, 15, 15, and 30
decibels in the left ear at 500, 1,000, 2,000, and 4,000
Hertz, respectively. His speech discrimination was 98
percent correct in the right ear and 94 percent correct in
the left ear. The diagnosis was slight high frequency
hearing impairment, bilaterally. On clinical examination
performed prior to audiometric testing, the ear canals were
normal bilaterally, and the left tympanic membrane had a
monomeric membrane (due to a healed perforation) which bulged
out. The examiner stated that the condition of the left
tympanic membrane probably accounted for a very slight
hearing loss in the left ear if present.
In an April 1971 RO decision, the RO denied service
connection for defective hearing. The veteran did not
appeal.
In June 1984, the veteran submitted an application to reopen
the previously denied claim for service connection for
bilateral hearing loss. He submitted reports of periodic
audiometric testing dated from 1953 to 1984 which showed
decreased hearing acuity, and stated that such testing was
performed by his employer.
In June 1984, the RO continued to deny service connection for
hearing loss, and the veteran appealed.
By a letter dated in October 1984, the veteran's spouse
stated that he incurred hearing loss during military service.
In a May 1985 final Board decision, service connection was
denied for defective hearing. Evidence submitted subsequent
to this decision is summarized below.
In February 1996, the veteran submitted a claim for service
connection for residuals of a left ear injury.
In a March 1996 RO decision, the RO established service
connection for residuals of perforation of the left tympanic
membrane, with a noncompensable evaluation.
In August 1996, the veteran submitted an application to
reopen a previously denied claim for service connection for
bilateral hearing loss. He enclosed reports of private
periodic audiometric testing dated from 1953 to 1986 which
show decreased hearing acuity. The majority of the records
indicated that the veteran underwent annual audiological
examinations due to noise exposure. In an October 1982
audiogram record, the veteran reported that he had been
exposed to small arms fire, explosives, and artillery during
military service, and that he worked in a noisy industry at
his current job from age 20 to age 41. The examiner noted
that he had some high frequency hearing loss.
In August 1996, the RO denied the application to reopen the
claim for service connection for hearing loss.
A September 1996 statement from T.D.P. recites that he served
with the veteran and recalled that the veteran went to sick
call for treatment of an ear infection on several occasions
during military service.
By a statement dated in September 1996, the veteran's spouse
stated that the veteran was treated for drainage of his left
ear for several years, and asserted that his current
bilateral hearing loss was due to military service.
In April 1997 the veteran underwent VA audiological testing
and such revealed pure tone thresholds of 15, 15, 15, 25, and
55 decibels in the right ear and 10, 10, 15, 20, and 30
decibels in the left ear at 500, 1,000, 2,000, 3,000, and
4,000 Hertz, respectively. His speech discrimination was 92
percent correct in the right ear and 88 percent correct in
the left ear. The diagnosis was hearing acuity within normal
limits from 250 to 3000 Hertz, bilaterally, with moderate
sensorineural hearing loss from 4000 to 8000 Hertz in the
right ear, and mild sensorineural hearing loss at 4000 Hertz
and moderate sensorineural hearing loss at 6000 and 8000
Hertz in the left ear. On clinical examination, the
diagnosis was a history of perforation of the left tympanic
membrane, which was badly deformed with a history of pain on
increased pressure.
II. Legal Analysis
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service incurrence for
organic diseases of the nervous system, including
sensorineural hearing loss, will be presumed if manifest to a
compensable level within one year of the veteran’s separation
from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§
3.307, 3.309.
For the purposes of applying the laws administered by the VA,
impaired hearing will be considered to be a disability when
the auditory threshold in any of the frequencies of 500,
1,000, 2,000, 3,000, and 4,000 Hertz is 40 decibels or
greater; or when the auditory thresholds for at least three
of these frequencies are 26 decibels or greater; or when
speech recognition scores using the Maryland CNC Test are
less than 94 percent. 38 C.F.R. § 3.385.
The veteran’s claim for service connection for bilateral
hearing loss was previously denied in a May 1985 Board
decision; this decision is considered final, with the
exception that the claim may be reopened if new and material
evidence is submitted. 38 U.S.C.A. §§ 5108, 7104; Evans v.
Brown, 9 Vet. App. 273 (1996); Manio v. Derwinski, 1 Vet.
App. 140 (1991). “New” evidence is that which is not
merely cumulative or redundant of evidence previously
considered; “material” evidence is that which is relevant
to and probative of the issue at hand, and which, when viewed
in the context of all the evidence, raises a reasonable
possibility of a change in the prior adverse outcome. 38
C.F.R. § 3.156; White v. Brown, 6 Vet. App. 247 (1994).
Evidence considered at the time of the May 1985 Board
decision includes, in part, service medical records which
show no hearing loss during the veteran’s 1943 - 1946 active
duty, post-service private audiological records dated from
1953 to 1982 from the veteran's employer showing decreased
hearing acuity, and a VA audiometric examination performed in
1971 showing he had bilateral high frequency hearing loss.
At the time of the 1985 Board decision, there were no medical
records showing hearing loss during active duty, or in the
first year following separation from active duty service, to
a compensable degree (for presumptive service incurrence) or
otherwise, and there was no competent medical evidence
demonstrating that the veteran’s current hearing loss was
linked to his military service.
Evidence received, since the May 1985 Board decision,
includes copies of private audiological examinations dated
from 1953 to 1986, and a number of these are duplicates of
previously considered records. These documents are not new
evidence since they contain information which is redundant or
cumulative of that previously considered. Moreover, the
documents are not material evidence as, when viewed in the
context of all the evidence, they do not create a reasonable
possibility of a change in the prior adverse outcome, in that
they do not link the current bilateral hearing loss with
service or with a service-connected disability, and in fact
suggest that the veteran was exposed to acoustic trauma for
several years in his post-service employment. Routen v.
Brown, 10 Vet. App. 183 (1997); White, supra; Cox v. Brown, 5
Vet. App. 95 (1993).
Additional evidence received since the May 1985 Board
decision includes a 1997 VA examination showing that the
veteran currently has decreased hearing acuity bilaterally
which equates to hearing loss according to VA regulation. 38
C.F.R. § 3.385. The Board finds that this record is not new
evidence, as it is cumulative of evidence previously
considered. While this record demonstrates that the veteran
currently has bilateral hearing loss, the evidence is not
material because it does not link such disorder to his
service or (for secondary service connection under 38 C.F.R.
§ 3.310) to his recently service-connected residuals of a
perforated left eardrum. Routen, supra; Cox, supra.
Since the 1985 Board decision, the veteran and his spouse
have again asserted that his bilateral hearing loss is
causally related to his military service, and a statement
from a fellow serviceman has been submitted to the effect
that the veteran was treated for ear infections during
service. Many of these assertions are not new as they are
duplicative of statements which were of record at the time of
the prior final denial of service connection for bilateral
hearing loss. Reid v. Derwinski, 2 Vet. App. 312 (1992).
Moreover, such statements are not material evidence since, as
laymen, the veteran, his spouse, and his fellow serviceman
have no competence to give a medical opinion on the diagnosis
or etiology of a condition, and their statements on such
matters do not constitute material evidence to reopen the
claim of service connection for bilateral hearing loss.
Moray v. Brown, 5 Vet. App. 211 (1993).
The Board concludes that new and material evidence has not
been submitted since the May 1985 Board decision which denied
service connection for bilateral hearing loss. Thus, the
claim has not been reopened, and the May 1985 decision
remains final.
ORDER
The application to reopen a claim for service connection for
bilateral hearing loss is denied.
L. W. TOBIN
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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